April 07, 2009

Whelan Watch

by publius

Continuing our Ed Whelan watch, he’s begun a series of posts attacking Koh and a bogeyman version of “transnationalism” – which transforms in Whelan’s posts into the means through which an international conspiracy will undermine American sovereignty. So as I have time, I’m going to address some of his anti-Koh posts. So let’s start with his first one.

Whelan cites selectively from two Koh articles. Below, I’ve provided Whelan’s excerpt from one of those articles. Note that Whelan’s theme is that Koh and transnationalists want to substitute international law for domestic law (or at least to use international law to ignore domestic law). Whelan writes:

Distinguishing between domestic and international law makes no sense [Koh argues], since “[d]omestic and international processes and events will soon become so integrated that we will no longer know whether to characterize certain concepts as local or global in nature.”

My point is that as international legal academics, we must start treating transnational law as its own category. Domestic and international processes and events will soon become so integrated that we will no longer know whether to characterize certain concepts as local or global in nature. For example, is the metric system fundamentally national or international?

Koh’s point isn’t that we should ignore domestic law – or treat it as non-existent. His point is entirely different. He's simply explaining that there are new legal developments that are best described as transnational – and that these specific developments blur the line between domestic and international, local and global.

Koh is essentially saying that “a platypus blurs the line between mammal and bird.” That is, he’s observing and describing a phenomenon and urging us to take note of it. Whelan, however, is representing Koh’s words as saying, “Koh thinks mammals don't really exist.” The existence of something that doesn't fit into a certain category doesn't eliminate the category altogether.

That’s what makes Whelan’s posts so nativist. It’s one thing to disagree about the relevance of international developments, or even about how to describe those developments. But to Whelan, all of Koh’s descriptions (along with Koh's more limited normative suggestions) mutate into calls to wholly ignore domestic law. But that’s not at all what Koh is saying – though misrepresenting Koh will probably help Whelan’s posts get picked up by the know-nothing nativist wings of the conservative media world.

As for the other Koh article that Whelan cites, it too is portrayed as some wild-eyed attempt to supplant domestic law with international law. Koh’s actual argument, however, couldn’t be less controversial. He’s simply saying that American courts have – from the founding – historically looked abroad to inform their judgments, and that they should continue doing so today.

Honestly, I’m baffled as to why so many legal conservatives get in an uproar about this. When you’re construing ambiguous constitutional and statutory text, you look to lots of different things – English common law, policy, state precedent, the Webster’s Dictionary, etc. All Koh is saying is that international law is one of those things we can consider. It’s almost laughable how non-controversial this is. He isn’t saying we should supplant our own law – he’s saying we should sometimes in some instances look abroad to help inform our judgment. That’s how the scientific process works after all. I mean, personally, I think it's noteworthy that only the United States and Iran openly executed children in 1999.

And to illustrate how utterly common this practice is, consider this passage from Chambers v. Florida (1940) written by Hugo Black. Here, the Supreme Court found a due process violation after a mob in Florida rounded up a bunch of African-Americans and beat confessions out of them. After citing various English legal authorities from the colonial era and before, Black wrote:

The determination to preserve an accused's right to procedural due process sprang in large part from knowledge of the historical truth that the rights and liberties of people accused of crime could not be safely entrusted to secret inquisitorial processes. The testimony of centuries, in governments of varying kinds over populations of different races and beliefs, stood as proof that physical and mental torture and coercion had brought about the tragically unjust sacrifices of some who were the noblest and most useful of their generations. The rack, the thumbscrew, the wheel, solitary confinement, protracted questioning and cross questioning, and other ingenious forms of entrapment of the helpless or unpopular had left their wake of mutilated bodies and shattered minds along the way to the cross, the guillotine, the stake and the hangman's noose. And they who have suffered most from secret and dictatorial proceedings have almost always been the poor, the ignorant, the numerically weak, the friendless, and the powerless.

Of course, under Whelan’s view, we can’t even consider any of this stuff in construing the due process clause. Hugo Black quite clearly wanted to supplant good ol’ fashioned American law with effete European latte law.

Comments

It's not a conspiracy. Conspiracies are hidden. The project of creating transnational law is totally open, and to a very large extent, it's an accomplished fact. But it does raise some difficult questions about democratic legitimacy.

IIRC, Hugo Black was a hardcore textual literalist, too, esp. on 14th amendment incorporation and due process issues. If he was comfortable with using occasional observations from other sources, then 'conservative' criticism of transnational jurisprudence has a serious problem.

pith - i don't buy the legitimacy argument. borrowing from webster's dictionary doesn't create legitimacy issues. now, it may be wise or unwise to look at a certain standard. but that's different from legitimacy. if there are legitimacy problems, i think that's just a function of Justices getting to interpret the constitution. but simply LOOKING elsewhere for help to inform the opinion doesn't.

also, there are of course some aspects of international law that call into question whether int'l law is binding, self-executing, etc. i feel like whelan and others like to take that specific strand and expand into some nonsensical claim that france can dictate what the 8th amendment means.

It seems to me that there is a more significant issue here than mere description, and it goes to the question of where the authority to make law resides. Throughout most of your post, you eschew Koh's favored term "transnational" and use instead the term "international."

Well, the authority to make domestic law resides, in the US, with representative bodies such as Congress and the state legislatures. International law is made by national governments by means of treaties, and most frequently relies on the good faith of the signatory powers for its enforcement. But Koh's category of transnational law is made (or at least can be made) by global custom or by transnational institutions - i.e. not through the express assent of national governments and not, therefore, democratically.

One of Whelan's concerns is that Koh advocates that transnational law occupy (or believes that transnational law occupies) the status of federal common law - being therefore binding on US states and reversible only by means of congressional statute. If this indeed becomes the case, it means a real cession of a portion of US sovereign democratic lawmaking power, since Congress is reduced to having a mere veto power over law made outside it.

It means more even than that: if transnational law is made by custom-become-binding, or made by transnational institutions, then it is not a question of domestic courts electing (or not) to look to transnational norms in construing law. Domestic courts can hardly claim that a thing is not customary in the face of international opinion that the thing is customary, nor can they deny that transnational institutions have determined this or that: it is theirs only to apply.

If transnational law made by custom attains the status of federal common law, tell me again that there is no derogation of democratic sovereignty.

If you want to silence Whelan, that's the issue you need to address. This is not a brouhaha over mere descriptive theories.

I don't think the concern is that France can dictate what the 8th amendment means. It's that judges here can use what France thinks about similar issues as an excuse to dictate that the 8th amendment 'mean' something other than what other Americans want it to mean.

Of course, judges don't lack for excuses to pull that kind of stunt, so it's not really a big deal them having yet another way to do it. Still, the concern isn't utterly unreasonable: So, we're different from Europe? If we wanted to live in Europe, we could move there.

But if we let the judiciary turn the US into Europe, where do we immigrate to, to get back to living in America?

"One of Whelan's concerns is that Koh advocates that transnational law occupy (or believes that transnational law occupies) the status of federal common law - being therefore binding on US states and reversible only by means of congressional statute."

So what actual evidence of this is there?

Is there some reason to believe this is other than an hysterical fantasy of some right-wingers?

Incidentally, it's off-topic, but Vermont has become the fourth state to legalize gay marriage, and the first to do so by legislature, overriding the governor's veto by 23-5 to override in the state Senate and 100-49 to override in the House.

"So let’s start with his first one."
{...}
"That’s what makes Whelan’s posts so nativist."
("Posts?" So far, you've cited only one; there are presently five. You have much more deep analysis, insulting assertions as to the sophistication of your "know nothing" interlocutors, and writing "nativist" every other paragraph.)

"It’s hard to overstate just how nonsensical these arguments are."
(Indeed it is, but you seem up to the task, overstatement being your only tool.)

One of Whelan's concerns is that Koh advocates that transnational law occupy (or believes that transnational law occupies) the status of federal common law - being therefore binding on US states and reversible only by means of congressional statute. If this indeed becomes the case, it means a real cession of a portion of US sovereign democratic lawmaking power, since Congress is reduced to having a mere veto power over law made outside it.

It means more even than that: if transnational law is made by custom-become-binding, or made by transnational institutions, then it is not a question of domestic courts electing (or not) to look to transnational norms in construing law. Domestic courts can hardly claim that a thing is not customary in the face of international opinion that the thing is customary, nor can they deny that transnational institutions have determined this or that: it is theirs only to apply.

If transnational law made by custom attains the status of federal common law, tell me again that there is no derogation of democratic sovereignty.

The impression I get is that this "common law" is in areas where Congress has not said anything AND there is no federal common law--there is no precedent to guide at all. A decision must be made; what guidelines are available?

I think under those circumstances "derogation of democratic sovereignty" is an overstatement since the instruments of US power has not deigned to make a decision on its sovereignty at all.

-The inability of US states to legislate on certain matters within their ordinary purview because transnational "customary" norms, particularly those emerging in the area of human rights, would carry the status of federal common law, which would trump contrary state law.

-Congress would be reduced from being the maker of law to having a mere veto power.

There is such a thing as legislative inertia: it takes a great deal of effort to make a new law. If transnational law automatically has the status of federal common law, then it arrives without going through the legislative process, and Americans have to overcome legislative inertia to reverse it.

If this takes place, there is a real derogation of democratic sovereignty.

""One of Whelan's concerns is that Koh advocates that transnational law occupy (or believes that transnational law occupies) the status of federal common law - being therefore binding on US states and reversible only by means of congressional statute."

So what actual evidence of this is there?"

Roper v. Simmons, in which the Supreme Court revisiting the exact same issue that it had ruled on in exactly the opposite way about a decade before, and directly in the face of evidence that states were becoming more likely to allow such executions.

Oh and that can't be fixed by the national legislature, only by Constitutional amendment, which rather makes the point a bit stronger.

"Roper v. Simmons, in which the Supreme Court revisiting the exact same issue that it had ruled on in exactly the opposite way about a decade before, and directly in the face of evidence that states were becoming more likely to allow such executions."

Harold Koh wrote Roper v. Simmons?

I didn't know that.

And Roper says that international law is "binding on US states and reversible only by means of congressional statute"?

I didn't know that either. Are you sure about these two things?

Or did you possibly read the statement and question over-hastily?

The claim: "Koh advocates that transnational law occupy (or believes that transnational law occupies) the status of federal common law - being therefore binding on US states and reversible only by means of congressional statute."

Is a Supreme Court decision somehow a decision of "transnational law" that has "the status of federal common law"?

There was an academic exchange between Koh on one side and Jack Goldsmith and Curtis Bradley on the other in the Havard Law Review.

Briefly, Bradley and Goldsmith argued that customary international law (CIL) was not until recently regarded as having the status of federal common law, that CIL is increasingly being made less by state practice than by non-state advocates, that recent human rights CIL, which deals with the privileges states owe their citizens, is not like traditional CIL, which dealt with things like diplomatic immunity, that this sort of CIL threatens to infringe on democratic sovereignty, and that CIL (or at least human rights CIL) should not have the status of federal common law.

Koh responded arguing that CIL is a unity that has always had and ought always to have the status of federal common law.

Here's Koh:
"[T]he capacity of the federal courts to incorporate customary international law into federal law - unless ousted by contrary federal directive - is absolutely critical to maintaining the coherence of federal law in areas of international concern. With certain exceptions, placing all international law on a federal, subconstitutional plane gives customary international law a lexical comparability with treaties and statutes, which are superior to state law under the Supremacy Clause."

And again:
"Bradley and Goldsmith would [...] creat[e] two rigid tiers of international law within the United States legal system: a federal tier for ratified treaties, and a state tier for what they deem to be lesser, non‑positive customary law. Under their scenario, a treaty that is not ratified, but that nevertheless announces important customary international law rules - for example, the Vienna Convention on the Law of Treaties or the United Nations Convention on the Law of the Sea - need not be applied or respected by state courts or legislatures unless expressly executed by a statute or order emanating from the federal political branches.

"Under this reasoning, the fifty states of the Union had no domestic legal obligation to obey customary norms against genocide during the period from December 1948, when the United States first signed the Genocide Convention, until November 1988, when the United States finally ratified that treaty and executed it as domestic federal law."

Note that Koh is effectively claiming that even unratified treaties, if they embody CIL norms, automatically become federal common law.

The articles are:
“Customary International Law as Federal Common Law: A Critique of the Modern Position,” 110 Harv. L. Rev. 815 (Bradley and Goldsmith)

The CIL takes a while to explain, but I will eventually. But needless to say, I think Whelan is being highly misleading here.

For one, CIL has been part of federal law since forever. (there's a 1900 case confirming this).

Second, the passage whelan is citing is a discussion about whether CIL should be federal or state issue. Koh is saying that making it state law would open int'l law interpretations up to 50 different readings. that's why koh uses the word "coherence" -- not that you'd get any of this from whelan.

third, this nefarious "common law" is very often just a fancy word for canons of interpretation of other statutes, treaties, etc.

but the upshot is that whelan is presenting an inflammatory view that takes some detailed descriptions to break down. it's actually a higher level of misleading b/c the quotes are carefully crafted.

What Koh -- and indeed most international law academics -- advocate with CIL is far more aggressive than you suggest (a point some of the folks at Opinio Juris have noted and concede). For one thing, Koh has made very clear that he thinks CIL should trump contrary state law. He also believes unratified treaties should be "applied" in state and federal courts. This may not be scary or objectionable, but it is much closer to what Whelan has said than your anodyne description here.

CIL, as viewed by Koh, is far more than a canon of interpretation -- further a canon of interpretation, by itself, cannot "trump" state law. All it can do is serve as an interpretive guide when a statute is unclear. Koh, however, calls for much, much more. So, for instance, in the passages Jeremiah cites above, Koh argues that states should have an affirmative, legal obligation to abide by unratified treaties that are seen as part of CIL, irrespective of what Congress or state legislatures have, or have not, done. Again, it seems to me that you are (consciously or otherwise) watering down Koh's views, and defending things that are not really in contention.